Scholars have increasingly focused on the relevance of post-Founding historical practice to discerning the separation of powers between Congress and the Executive Branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”—a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support nonlegal but obligatory norms of proper governmental behavior—something that Commonwealth theorists refer to as “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957–1958, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows—based on internal Executive Branch documents that have not previously been discovered or discussed in the literature—how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of historical gloss and conventions for the judicial separation of powers more generally.

The report emphasizes the work of federal district court judges, and there are several references to civil procedure – including the 2015 FRCP amendments that were the focus of last year’s report:

The judge is responsible for supervising the important pretrial process and conducting the trial itself. He resolves discovery disputes, manages the selection of the jury, rules on the admission of evidence, determines the proper and understandable instruction of the jury, and resolves any issues surrounding the acceptance of the verdict and entry of judgment. Each of those steps requires special knowledge, sensitivity, and skill. The judge must have mastery of the complex rules of procedure and evidence and be able to apply those rules to the nuances of a unique controversy.

* * *

As I explained in my 2015 Year-End Report, the Judicial Conference—the policy making body of the federal courts—has revised the Federal Rules of Civil Procedure to emphasize the judge’s role in early and effective case management. Those procedural reforms encourage district judges to meet promptly with the lawyers after the complaint is filed, confer about the needs of the case, develop a case management plan, and expedite resolution of pretrial discovery disputes. The reforms are beginning to have a positive effect because already extremely busy judges are willing to undertake more active engagement in managing their dockets, which will pay dividends down the road. A lumberjack saves time when he takes the time to sharpen his ax. This year, we will take a step further and ask district judges to participate in pilot programs to test several promising case management techniques aimed at reducing the costs of discovery.

It’s a “nonprecedential disposition,” but the Seventh Circuit’s decision last week in Couvillion v. Speedway LLC features an interesting exchange about summary judgment. The majority (Chief Judge Wood & Judge Easterbrook) affirms the lower court’s grant of summary judgment against a plaintiff who sued Speedway after she was injured while adding air to her tires at a Speedway service station. In the final paragraph, the court writes:

Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g., Countrymark Cooperative, Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. App. 2008) (“negligence cases are especially fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”) * * * . Maybe Indiana’s judiciary would have submitted Couvillion’s claim to a jury. But federal rules govern the allocation of tasks between judge and jury in federal court. See, e.g., Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment. We know from Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and other decisions, that federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court.

Another point—which Judge Sykes emphasizes in her dissent—has to do with the majority’s assertion that “In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment.” Judge Sykes writes in response:

Under Rule 56 (and in state practice), a judge may resolve the case by summary judgment only if there is no material factual dispute “and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (emphasis added); see also Ind. R. Trial P. 56(C). The historical facts are undisputed here, but it doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury determine Speedway’s liability unless on this record no reasonable jury could find a breach of duty under §§ 343 and 343A.

There would seem to be federalism dimensions with respect to this issue as well—is it by state or federal law that we decide whether the movant is “entitled to judgment as a matter of law”?

Aaron-Andrew Bruhl has posted on SSRN a draft of his article The Jurisdictional Canon, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:

This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed narrowly, with ambiguities resolved against the availability of federal jurisdiction. This interpretive canon is over a century old and has been recited in thousands of federal cases, but its future has become uncertain. The Supreme Court recently stated that the canon does not apply to many of today’s most important jurisdictional disputes. The Court’s decision is part of a pattern, as several cases from the last decade have questioned the canon’s validity, a surprising development given what appeared to be the canon’s entrenched status.

This state of flux and uncertainty provides an ideal time to assess the merits and the likely future trajectory of the canon requiring narrow construction of jurisdictional statutes. This Article undertakes those tasks. First, it conducts a normative evaluation of the canon and its potential justifications. The normative evaluation requires consideration of several matters, including the canon’s historical pedigree, its relationship to constitutional values and congressional preferences, and its ability to bring about good social outcomes. Reasonable minds can differ regarding whether the canon is ultimately justified, but the case for it turns out to be weaker than most observers would initially suspect. Second, the Article attempts, as a positive matter, to identify the institutional and political factors that have contributed to the canon’s recent negative trajectory and that can be expected to shape its future path. The canon’s future is uncertain because it depends on the interaction of a variety of matters including docket composition, interest-group activity, and the Supreme Court's attitude toward the civil justice system.

This Article’s examination of the jurisdiction canon has broader value beyond the field of federal jurisdiction because it sheds some incidental light on the more general questions of why interpretive rules change, how methodological changes spread through the judicial hierarchy, and how the interpretive practices of the lower courts vary from those of the Supreme Court.

Here is the first installment of “Just the Facts,” which was posted this week. From the introduction:

Just the Facts is a new feature that highlights issues and trends in the Judiciary based on data collected by the Judiciary Data and Analysis Office (JDAO) of the Administrative Office of the U.S. Courts. Comments, questions, and suggestions can be sent to the data team.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

Courts sometimes avoid deciding contentious issues. One prominent justification for this practice is that, by employing avoidance strategically, a court can postpone reaching decisions that might threaten its institutional viability. Avoidance creates delay, which can allow for productive dialogue with and among the political branches. That dialogue, in turn, may result in the democratic resolution of — or the evolution of popular societal consensus around — a contested question, relieving the court of its duty. Many scholars and judges assume that, by creating and deferring to this dialogue, a court can safeguard its institutional legitimacy and security.

Accepting this assumption arguendo, this Article seeks to evaluate avoidance as it relates to dialogue. It identifies two key factors in the avoidance decision that might affect dialogue with the political branches: first, the timing of avoidance (i.e., when in the life cycle of a case does a high court choose to avoid); and, second, a court’s candor about the decision (i.e., to what degree does a court openly acknowledge its choice to avoid). The Article draws on a series of avoidance strategies from apex courts around the world to tease out the relationships among timing, candor, and dialogue. As the first study to analyze avoidance from a comparative perspective, the Article generates a new framework for assessing avoidance by highlighting the impact of timing on the quality of dialogue, the possible unintended consequences of candor, and the critical trade-offs between avoidance and power.

Here’s an announcement with the dates and details for the Ninth Annual Junior Faculty Federal Courts Workshop:

Emory University School of Law School will host the Ninth Annual Junior Faculty Federal Courts Workshop on March 31-April 1, 2017. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2017 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee. The conference will begin with a dinner on Friday March 31; panels will take place on Saturday, April 1. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as commentator while leading a group discussion on the papers. Scheduled commentators include Heather Elliot, Richard Freer, Jonathan Nash, and James Pfander.

Emory Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. Those wishing to present a paper must submit an abstract to federalcourtsworkshop2017@gmail.com by November 1, 2016. Papers will be selected by a committee of past participants, and presenters will be notified by early January. Those planning to attend must register by February 20, 2017.

The first rule of administrative law is that discretion can be dangerous. Although discretion is often used for its intended purposes, scholars of the regulatory process understand from both theory and experience that unintended consequences sometimes result. This is one reason why the Supreme Court is cautious when it comes to agency discretion. After decades of preventing agencies from acting in arbitrary or even self-interested ways, the modern Court has developed a fairly sophisticated understanding of the risks and rewards of discretion and why it is essential to pay attention to incentives for the proper exercise of discretion.

That is, unless the Supreme Court is addressing judicial discretion. Then, its sophistication all too often gets tossed aside. Qualified immunity is a perfect example. In Pearson v. Callahan, the Court granted judges confronting novel civil-rights claims maximalist discretion whether to decide constitutional questions for the public’s benefit. The intent behind this new discretion is sound: flexibility allows judges to balance constitutional avoidance versus constitutional stagnation in light of case-specific factors. What the Court forgot, however, is that discretion can also have unintended consequences.

This Article addresses perhaps the most serious of these unintended consequences: strategic behavior by judges. While the Court recognizes that federal agencies may have incentives to use discretion in strategic ways, neither the Justices nor scholars have considered the strategic considerations that can influence a judge’s discretionary decision to clearly establish constitutional rights. The potential for strategic behavior is especially sharp, moreover, when discretion to decide constitutional questions is combined with discretion to issue unpublished, nonprecedential opinions. To illustrate this danger, this Article examines real-world judicial decisionmaking. Reviewing over 800 published and unpublished circuit decisions, this Article identifies significant “panel effects”: politically unified panels are more likely to exercise discretion either to find no constitutional violation, for “all Republican” panels, or to recognize new constitutional rights, for “all Democratic” panels. Yet on mixed panels there are no differences, suggesting a collegial concurrence or a majority compromise to avoid dissent. The decision to publish also appears to be used strategically. For instance, one in five decisions recognizing new constitutional rights is unpublished. This potential for strategic behavior — as in the administrative law context — begs for reform.

Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.

It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:

Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi(No. 15-1359), and Hasty v. Abbasi(No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.

The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history).

[Update: During the cert-stage briefing and in the initial order granting certiorari, these three cases were captioned with Ibrahim Turkmen as the lead respondent (Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen). The docket and merits briefs now list Ahmer Iqbal Abbasi as the lead respondent.]

You can find all the cert-stage briefing—and follow the merits briefs as they come in—by checking out the SCOTUSblog casefiles (Ziglar; Ashcroft; Hasty). Here are the questions presented in full...

Simona Grossi presents the following guest post on one of the important cases on the Supreme Court’s docket this Term:

[Update: Simona has also posted on SSRN a more detailed essay analyzing the case.]

* * *

On Wednesday, November 2, the Supreme Court will hear oral arguments in Venezuela v. Helmerich & Payne International, to decide whether to make it harder for the plaintiffs to plead jurisdiction over a foreign state under the Foreign Sovereign Immunities Act (“FSIA”). FSIA provides a framework for determining when a foreign state may be subject to the jurisdiction of the federal or state courts of the United States, and when it shall be immune from such jurisdiction. In particular, and specifically at issue in Helmerich, is the expropriation exception under §1605(a)(3), which strips the foreign sovereign of immunity when, among other things, the foreign sovereign has engaged in a taking of property in violation of international law.

The plaintiffs in the case are Helmerich & Payne International Drilling Co. (H&P-IDC), an Oklahoma-based corporation, and one of its subsidiary, Helmerich & Payne de Venezuela (H&P-V), incorporated under Venezuela law. They sued the Bolivarian Republic of Venezuela and two state-owned corporations, Petróleos de Venezuela, S.A. (PDVSA) and PDVSA Petróleo, (collectively, “PDVSA”), before the United States District Court for the District of Columbia claiming breach of contract and a taking of property in violation of international law. They had entered into a series of contracts for oil-drilling with PDVSA, and defendants breached those contracts by failing to make timely payments for the services rendered, and by unlawfully expropriating plainitffs’ rigs. Venezuela and PDVSA moved to dismiss the complaint on the grounds that neither FSIA exception applied and that the act-of-state doctrine—under which American courts “will not question the validity of public acts (acts jure imperii) performed by other sovereigns within their own borders”—bars the suit altogether. The district court held that the plaintiffs had standing to assert a taking in violation of international law and that the claim was not barred by the act-of-state doctrine.

On appeal, Venezuela argued that the expropriation exception in the FSIA—denying foreign sovereign immunity “in any case . . . in which rights in property taken in violation of international law are in issue,” 28 U.S.C. § 1605(a)(3)—did not apply because H&P-V was a Venezuelan national and, as such, under United States v. Belmont, 301 U.S. 324, 332 (1937), it could not claim a taking in violation of international law. Relying on Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 861 (2d Cir. 1962), and the Restatement (Third) of Foreign Relations Law, H&P-V rebutted that the defendants had unreasonably discriminated against it on the basis of its sole shareholder’s foreign nationality, thus implicating a discrimination exception to the Belmont rule. The D.C. Circuit found that H&P-V had satisfied the Circuit’s standard for surviving a motion to dismiss in a FSIA case— this standard allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous—and held the taking exception applicable. Hence, Venezuela would not be immune from the jurisdiction of the court.

Venezuela petitioned the Supreme Court for review arguing that plaintiffs had failed to plead facts sufficient to support a claim of discriminatory taking. The question before the Supreme Court is whether the pleading standard for alleging that a case falls within the FSIA's expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute. Petitioners argue that for this case to fall within the jurisdiction of the court, plaintiffs must show “an actual violation of customary international law” and plead facts sufficient to “establish the existence of all of the elements set out in the relevant statutory exception.” (Brief for Petitioners at 14-15). Essentially, Venezuela is claiming that the plaintiffs should prove their case to have access to the jurisdiction of the court. Surprisingly, or perhaps not much so, Venezuela’s demand for this high jurisdictional threshold is fully endorsed by the United States, that has filed an amicus brief in support, “to ensure that the foreign state actually receives the protections of immunity if no exception applies, to preserve the dignity of the foreign state and comity between nations, and to safeguard the interests of the United States when it is sued in foreign courts.” (U.S. Amicus Brief, at 8)

This essay, a contribution to a Symposium in honor of Professor Daniel Meltzer, focuses on one aspect of federal question jurisdiction – cases in which a question of federal law is “embedded” in a state law cause of action. The essay deals primarily with these cases as they come to the Supreme Court on request for review of a state court decision, but also addresses cases that arise when a party invokes the original or removal jurisdiction of a federal district court. The questions whether and to what extent such cases fall within the constitutional and statutory authority of the federal courts are considered in the historical context of the evolution of Supreme Court decisions, and the interplay of the views over several decades of the author, of Professor Meltzer, and of seven editions of Hart & Wechsler’s “The Federal Courts and the Federal System.”

Among other things, JASTA adds a new provision to Title 28 of the U.S. Code: 28 U.S.C. § 1605B. Subsection (b) of the new provision states:

(b) RESPONSIBILITY OF FOREIGN STATES.—A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

Subsection (d) provides: “A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.’’

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.